Thursday, 31 January 2013

There have been a number of excellent articles appearing about the Treaty of Waitangi and its place in New Zealand. They have gone a long way towards debunking and rejecting the historical revisionism now abroad amongst many Maori. These political activists have been trying to deploy the Treaty to justify Maori sovereignty equal to, or over the Crown.

These issues are so important to New Zealand's future--particularly when the country is starting to consider more formally the possible role and function of a constitution--that these articles deserve wide readership. To that end we have decided to republish them in Contra Celsum as they appear from time to time.

The next article addresses the mistaken idea of co-sovereignty which is now being asserted by many Maori groups.

Ewen McQueen: There can be only 'one sun in the sky' and that's the Crown

5:30 AM Tuesday Jan 22, 2013

In 1908 the Tuhoe chief Rua Kenana came down from his mountain
stronghold to discuss matters of state with Prime Minister Sir Joseph
Ward. To Rua's question on the issue of sovereignty, Ward replied: There
can be only one sun in the sky. As we review the place of the Treaty in
our constitution, we would do well to remember his words.

Protection of rangatiratanga or chieftainship is a fundamental Treaty
guarantee. However, for some, rangatiratanga has gained a lot in
translation. Ngapuhi, for instance, have challenged Crown sovereignty at
the Waitangi Tribunal. They argue that the guarantee of rangatiratanga
means they never relinquished sovereignty when signing the Treaty.

The Ngapuhi claim is not an isolated aberration. It is the inevitable
outcome of Treaty history being revised for the past two decades by
activists, lawyers and bureaucrats. The revision process means it has
now become fashionable to speak of Crown and iwi as Treaty "partners".

Indeed, "partnership" has become the mantra of a whole new paradigm of interpreting the Treaty. Taken to its logical conclusion, this paradigm sees iwi not so much as
loyal subjects of Her Majesty's Government but rather co-regents
expressing their own sovereignty. Advocates of this position assert the
Treaty merely granted the Crown a partial concession to exercise
authority over incoming settlers, while at the same time preserving for
iwi ultimate authority over all things Maori. In effect it is argued
that the Treaty established a dual sovereignty in New Zealand.

However, such thinking ignores both the Treaty itself and the historical context in which it was signed. Start with the Treaty text. Much is made of the differences between the
English and Maori versions. But one thing is certain - the word
partnership appears in neither. The Treaty articles do not even imply a
partnership in a constitutional sense. Rather they establish the British
Crown as the ultimate legal authority in return for protection of Maori
interests. The latter include land and chieftainship (rangatiratanga).
However, that chieftainship is guaranteed within the context of the
overarching sovereignty of the Crown.

As the Waitangi Tribunal noted in its 1987 Muriwhenua report: "From the
Treaty as a whole it is obvious that it does not purport to describe a
continuing relationship between sovereign states. Its purpose and effect
was the reverse - to provide for the relinquishment by Maori of their
sovereign status and to guarantee their protection upon becoming
subjects of the Crown."

The tribunal's reference to the Treaty "as a whole" is key. The Article
Two guarantee of rangatiratanga must be understood in the context of the
whole document. Iwi signed up to the whole Treaty, not just the second
article. Article One establishes Crown sovereignty. In it chiefs agreed
to "give absolutely to the Queen of England forever the complete
government over their land". That's Professor Sir Hugh Kawharu's
translation of the Maori version. It doesn't leave much room for
manoeuvre.

Kawharu's translation of Article Three is equally straightforward. Maori
took on "the same rights and duties of citizenship as the people of
England". The Court of Appeal reinforced this in a key 1987 judgment,
stating "For their part the Maori people have undertaken a duty of
loyalty to the Queen, [and] full acceptance of her Government".
Ironically this judgment also introduced the Treaty partnership concept
that is now so popular. Full acceptance of Crown sovereignty is less
fashionable.

In addition to the Treaty text, we have William Colenso's detailed
first-hand account of the debate at Waitangi. It shows that many chiefs
were initially reluctant to sign the Treaty, precisely because they
understood it would establish an authority above theirs. Tareha replied
to Hobson: "We only are the chiefs, rulers. We will not be ruled over.
What! thou, a foreigner, up, and I down! Thou high, and I, Tareha, the
great chief of the Ngapuhi tribes, low! No ..." Others expressed similar
sentiments. In the Hawkes Bay one chief, Te Hapuku, even drew a diagram
showing the Queen above the chiefs.

It is clear then, that while Maori may not have grasped the finer
nuances of sovereignty, they definitely understood the critical issue -
the Treaty established a governing authority over and above their
chieftainship. However, most still signed it.

They did so not because of assurances of "partnership", but because they
were persuaded of the benefits that Crown authority would bring. These
included law and order, peace between tribes and increased opportunity
for trade. Tamati Waka Nene, for instance, urged Hobson to remain as "a
father, a judge, a peacemaker". These were the arguments advanced in
support of the Treaty. Clearly they were persuasive, for most chiefs
agreed to give absolutely to the Queen the complete government over
their land.

Of course they did so in return for guaranteed protection of
chieftainship. The constitutional review may help us find new ways for
that chieftainship to be expressed. But let us never forget the
foundational constitutional reality that the Treaty established - one
sun in the sky.

About Me

John Tertullian and Contra Celsum are pseudonyms. The name "John" has reference to the sovereign saving grace of God, in which we publicly confess to stand. Tertullian was one of the earliest apologetes of the Christian Church, celebrated for his insistence upon the sharp antithesis between Christian belief and unbelief.
Celsum was an early opponent of the Gospel. One of the early Church fathers, Origen, in his work Contra Celsus completely dismantled the attack of Celsum. Our blog publishes in the spirit of Tertullian and Origen.